Profit v. Americold Logistics, LLC

248 F.R.D. 293, 2008 U.S. Dist. LEXIS 2284, 2008 WL 140677
CourtDistrict Court, N.D. Georgia
DecidedJanuary 7, 2008
DocketCivil Action No. 1:07-CV-254-TWT
StatusPublished
Cited by7 cases

This text of 248 F.R.D. 293 (Profit v. Americold Logistics, LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Profit v. Americold Logistics, LLC, 248 F.R.D. 293, 2008 U.S. Dist. LEXIS 2284, 2008 WL 140677 (N.D. Ga. 2008).

Opinion

ORDER

THOMAS W. THRASH, JR., District Judge.

This is a pro se employment discrimination action. It is before the Court on the Report and Recommendation [Doc. 6] of the Magistrate Judge recommending that the action be dismissed for failure to effectuate service. The Court approves and adopts the Report and Recommendation as the judgment of the Court. This action is DISMISSED.

SO ORDERED.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

LINDA T. WALKER, United States Magistrate Judge.

Plaintiff Freddie Profit, appearing pro se, initiated this employment discrimination action on January 30, 2007, alleging race-based violations of Title YII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., (“Title VII”), and discrimination based on physical disability in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq. (“ADA”). Docket Entry [1], On July 24, 2007, Defendant moved to dismiss the Complaint for untimely and insufficient service of process. Docket Entry [2]. While Plaintiff did not file a formal response to Defendant’s motion, on August 1, 2007, Plaintiff did file a completed Return of Service form indicating that he served Defendant by mail at an Atlanta, Georgia address. (Return of Service form dated July 21, 2007). Docket Entry [3]. Defendant filed a reply on August 16, 2007. Docket Entry [4].

On November 7, 2007, this Court ordered Plaintiff to show cause why his case should not be dismissed with prejudice for want of prosecution and failure to comply with the Federal Rules of Civil Procedure. Docket Entry [5] at 2 (cautioning Plaintiff that this Court’s initial review of the record evidence suggested that he has failed (1) to effect service within the time period imposed by the Federal Rules and (2) to present good cause to warrant a permissive extension of time in which to complete service). To date, [295]*295Plaintiff has not responded to this Court’s order. See generally Docket.

Having considered the briefing and all supporting documents submitted, and for the reasons set forth more fully below, this Court RECOMMENDS that Defendant’s Motion to Dismiss be GRANTED, and that the instant action be dismissed with prejudice due to the expiration of the relevant statute of limitations. Docket Entry [2].

DEFENDANT’S MOTION TO DISMISS

Defendant argues that Plaintiffs Complaint must be dismissed for failure to effect service in a timely manner pursuant to Federal Rule of Civil Procedure 4. (Defendant’s Motion to Dismiss (“Def.’s Mot.”) at 2-3, Docket Entry [2]). In support, Defendant underscores that Plaintiff has failed to serve Defendant with the Complaint, to seek an extension of time to effect service, or to prosecute his claims in any way. (Def.’s Mot. at 1-2). Defendant therefore contends that Plaintiff has failed to show any basis, much less good cause, for his insufficient service of process. (Def.’s Mot. at 3). As noted above, Plaintiff appears to oppose Defendant’s motion by claiming that he mailed the Complaint and Summons to Defendant at its Atlanta, Georgia corporate headquarters. (Return of Service dated July 21, 2007, Docket Entry [3]). Defendant replies that such action by Plaintiff does not qualify as effective service under either the Federal Rules or Georgia law, and accordingly, the Complaint must be dismissed. (Defendant’s Reply Brief in support of Motion to Dismiss (“Def.’s Reply”) at 1-2, Docket Entry [4]).

Under the Federal Rules, the plaintiff is tasked with serving the defendant with both a summons and the complaint within the time allowed under Rule 4(m). Fed.R.Civ.P. 4(c)(1). Rule 4(m) requires the plaintiff to effect service upon the defendant within one hundred twenty (120) days of the filing of the complaint. Fed.R.Civ.P. 4(m); see LeponeDempsey v. Carroll County Comm’rs, 476 F.3d 1277, 1281 (11th Cir.2007). Thus, Plaintiff was responsible for properly serving Defendant within one hundred twenty days of January 30, 2007, the date on which the instant case was filed. See Docket Entry [1],

As noted above, Plaintiff appears to claim that his purported service of the Summons and Complaint by mail, as evidenced by his executed Return of Service form dated July 21, 2007, constituted sufficient service. Docket Entry [3]. Plaintiffs reference to this purported service by mail is unavailing. Where, as here, the defendant is a corporation, Federal Rule of Civil Procedure 4(h) dictates the confines of proper service of process. In particular, Rule 4(h) explains that such service shall be effected

in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process____

Fed.R.Civ.P. 4(h). Rule 4(e)(1) provides, in pertinent part, that service can be effected “pursuant to the law of the state in which the district court is located.” Fed.R.Civ.P. 4(e)(1). Under the federal method of effecting service, service by mail upon a corporation may be accomplished only where the defendant, after receiving the plaintiffs request for waiver of service, executes an acknowledgment of service indicating its waiver of personal service of process. Fed.R.Civ.P. 4(d). Similarly, Georgia law requires personal service unless the defendant executes a similar waiver of personal service. See Ga. Code Ann. § 9-11-4; see also Ritts v. Dealers Alliance Credit Corp., 989 F.Supp. 1475, 1478 (N.D.Ga.1997) (underlining that “the mailing of a copy of the summons and complaint along with a request for acknowledgment of service to Defendant’s registered agent is not sufficient under Georgia law to perfect service”); Madden v. Cleland, 105 F.R.D. 520, 523 (N.D.Ga.1985) (“Georgia law has no provision for service by mail”); KMM Indus., Inc. v. Prof'l Ass’n, Inc., 164 Ga.App. 475, 297 S.E.2d 512, 513 (1982) (noting that “[tjhere is no provision in Georgia law which authorizes a party to serve a defendant corporation directly by certified or registered mail”) (emphasis in original).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
248 F.R.D. 293, 2008 U.S. Dist. LEXIS 2284, 2008 WL 140677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/profit-v-americold-logistics-llc-gand-2008.